One of the criticisms of US law enforcement in the run up to 9/11 was that it failed to connect the dots. Part of this was because information was not passed up the chain of command or pursued. Part was that information was not shared between agencies. One of the ways this second issue was addressed was by the creation of fusion centers. To date, fusion centers seem better at producing dots than in connecting them.
As described in a November 2007 ACLU report and a July 2008 update, fusion centers were cooperative efforts to share information that grew up haphazardly beginning around 2003 among local, state, and federal authorities. Almost every state has or is planning to have one. Since state and local laws vary, each fusion center is different. Mixed jurisdictions and chains of command within and between fusion centers and with no overarching regulation have led to an uncontrolled growth in mission. The goal has moved from counterterrorism to more general law enforcement to even broader information gathering on ordinary Americans. Military (in violation of posse comitatus) and private actors have also become involved.
In this, the centers can be seen as the next iteration in a long line of domestic surveillance programs from the old Red squads to the infamous FBI’s COINTELPRO which targeted Americans like Martin Luther King to the Total Information Awareness/Terrorist Information Awareness program which Congress defunded in 2003 just as fusion centers were taking off. By the end of 2006, the Department of Homeland Security had spent $380 million on them.
Like its predecessors, the system is ripe for abuse. It mixes criminal, public, and private information into profiles of large numbers of Americans and is perfect for data mining. It allows users to “policy shop” and acquire information from another jurisdiction which is against the law in one’s home state or locality. It includes reports on perfectly legal activities, such as using binoculars, taking notes, and espousing “extremist” views. Some of these extremist views include being Muslim, a peace activist, or against the death penalty. While these reports supposedly do not contain names, they do contain enough information for identification using other sources. They are also in violation of Title 28 Part 23 of the Code of Federal Regulations which states that law enforcement “shall collect information concerning an individual only if there is reasonable suspicion that the individual is involved in criminal conduct or activity and the information is relevant to that criminal conduct or activity.” In 2006, the DHS and Justice Department came up with guidelines for fusion centers which ignored this regulation completely and suggested the following as an incomplete list of possible information sources:
- Private sector entities such as food/water production facilities, grocery stores and supermarkets, and restaurants.
- Banks, investment firms, credit companies and government-related financial departments.
- Preschools, day care centers, universities, primary & secondary schools and other educational entities providing information on suspicious activity.
- Fire and emergency medical services in both the public and private sector such as hospitals and private EMS services.
- Utilities, electricity, and oil companies, Department of Energy.
- Private physicians, pharmaceutical companies, veterinarians.
- The gaming industry, sports authority, sporting facilities, amusement parks, cruise lines, hotels, motels, resorts and convention centers.
- Internet service and e-mail providers, the FCC, telecom companies, computer and software companies, and related government agencies.
- Defense contractors and military entities.
- The U.S. Postal service and private shipping companies.
- Apartment facilities, facility management companies, housing authorities.
- Malls, retail stores and shopping centers.
- State and child welfare entities.
- Governmental, public, and private transport entities such as airlines and shipping companies.
This is breathtaking in its scope. The result is that some 800, 000 of the nation’s law enforcement officials have in effect become intelligence agents, and not very good ones, of the government. It is not an exaggeration to say that what this is about is Big Brother and the creation of a surveillance state. Fusion centers operate in the dark with no oversight. They have shown no ability in their original counterterrorism mission and in their current form violate the First and Fourth Amendments massively and repeatedly. They are antithetical to American values of privacy and democracy.
On July 31, 2008, the Justice Department posted proposed rule changes in light of “the new, post-9/11 information sharing environment” that would legalize the illegal activities under Title 28 Part 23 the fusion centers have been engaged in for the last few years. It would also increase the length of time information could be held by such centers without any updating from 5 years to 10 years. This is another example of a government department seeking to institutionalize Administration power grabs and legitimize lawless behavior before Bush leaves office. The rules changes are set to go into effect on October 1, 2008.